CJ Maraga cites legislative loopholes in poll system

Two eminent judges on Monday warned Kenya of the political risks it faces for failing to cure the weaknesses in its electoral systems.

Retired South African judge Johann Kriegler who probed the flawed 2007 polls warned the nation against solving political problems in the corridors of justice.

And Chief Justice David Maraga raised the flag on gaps in the law relating to an annulment of a presidential election and the withdrawal of a candidate from the top race.

“Whereas the law is clear about what happens should a candidate die in between, the lack of specificity in regard to withdrawal leaves us with uncomfortable grey areas that require legislative attention,” noted Justice Maraga. (See separate story).

Mr Kriegler, a former Independent Review Commission (IREC) chairman, said Kenya had become too obsessed with the law as an end to political disputes, thus triggering unending power struggles.

The retired justice also warned against politicising the performance of the Judiciary, an arm of government, adding there is need to give up litigation for political dialogue.

“Lawyers do not comprehend the complexity of the elections. Elections are political processes, not legal. Law is about substance; elections are about perceptions,” explained Kriegler.

In his address yesterday to advocates during the Law Society of Kenya Colloquium (conference) on the Presidential Election Petitions last year, Kriegler asked lawyers to de-legalise elections and seek political solutions to electoral rows.

Although he acknowledged the nation had made progress in the electoral process, he said Kenya had resorted to law even in situations that can be solved politically.

“You have not let go of the ethnic suspicions that the colonial masters left you with. Use law as the ultimate resolve in political disputes,” he said.

The warning comes against a backdrop of a consistent push by the Opposition for electoral reforms.

Calls for poll reforms and lack of dialogue have led to the hardening of political stances, with National Super Alliance leader and opposition chief Raila Odinga now threatening to stage a swearing in ceremony this month.

In reference to the 2007 presidential vote, Kriegler said the solution to electoral disputes did not lie with the late Samuel Kivuitu and his team, or retired President Mwai Kibaki or Raila.

Instead, he attributed the problem that has bedeviled the country’s polls and democracy to the political styles of Kenyans.

“You have reduced your elections to an excuse to go to court. You have politicised and judicialised the electoral process.

“You have to set aside the political contest and dialogue. Keep the law out of politics as far as humanly possible,” said Kriegler.

Expensive elections

Commenting on last year’s general election, he said Kenya conducted the most expensive elections in the world and was the most complex and litigious country around the globe.

“I must congratulate Kenya. You have the most expensive elections in the world and you have evolved with the most complex elections in the world in 2017,” Kriegler said.

The IREC report had suggested that Kenya puts up an integrated and secure tallying and data transmission system to allow computerised data entry and tallying at the constituency level.

This was to increase transparency, verifiability and reduce suspicion among the charged political divides.

The Kriegler’s commission found there were too many electoral malpractices from several regions perpetrated by all the contesting parties to conclusively establish which candidate won the 2007 presidential polls.

The malpractices included bribery, vote buying, intimidation and ballot stuffing by both sides, as well as incompetence on the part of the defunct Electoral Commission of Kenya (ECK), which was shortly thereafter disbanded by the new Parliament.

Kriegler made a raft of recommendations, including the setting up of an independent body to manage elections.

These were the same questions and issues that haunted the country during polls since 1963.

The lawyers agreed that even witchcraft had refused to go; from the colonial times until today.

The Supreme Court decision on September also came into sharp focus, with two leading senior counsel, Ahmednassir Abdullahi and Pherozee Nowrojee, differing on the interpretation.

Senior lawyer Ahmednassir, who was litigating for President Uhuru Kenyatta, was of the view that the highest court in the land took a wrong approach in the first case ‘for looking for evidence’ on behalf of the Opposition leader Raila Odinga.

“There is no place for the Supreme Court to play an inquisitorial (where court is actively involved in investigating the facts of the case) role. It is putting itself in the shoes of the petitioners,” he said.

Leave parties

“Court should leave parties to litigate their case and if they have no evidence, too bad for them.”

However, Nowrojee said the court did well to question the conduct of the electoral agency and to seek evidence.

“That was the justification of the losers. There were 11,000 Forms 34 that were missing.

“The first judgment was sound and important especially about the compliance by officials,” he said. “We need to shift the goals of IEBC saying that you can’t prove me wrong.”

Lawyers also differed on whether the Supreme Court was too soft for not naming and punishing perpetrators of poll malpractises, while others felt the court gave Raila an opportunity to battle it in the repeat poll, which he squandered.